By Dr. Ken Broda-Bahm:
As any watcher of the Marvel movies knows, origin stories are important. You can't fully understand The Wolverine until you know how he came to be sporting those retractable adamantium claws. Trial consulting also has an origin story, coming from cases in the early to mid-seventies, when academics provided their expertise on juror psychology, weighing in firmly on the side of social justice. A current critic of the field, however, argues that trial consultants have strayed too far from those noble origins. Adam Benforado, Associate Professor of Law at Drexel University, authored an article in the current issue of Atlantic entitled, "Reasonable Doubts About the Jury System." It is an adaptation from his forthcoming book, Unfair: The New Science of Criminal Justice, and it is a pretty broad swipe at the trial consulting field. The subheading is, "Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale."
Benforado's argument, however, is a little different than most previous broad swipes at the field of trial consulting. Most often, those who argue for licensing, limiting, or just banning the practice will proceed on the assumption that trial consultants are like a toxin that distorts an otherwise fair process, and manipulates those terribly impressionable juries (cue Billy Flynn from the Broadway play Chicago to sing "Razzle-Dazzle"). Benforado shares some of these attitudes, but with a little more nuance. For example, he starts the piece by astutely observing the many ways the formal legal process upholds images of bias and human influence that are wildly out of step with the social science. Also, unlike most critics, he seems to have a pretty accurate understanding of what consultants do, and an appreciation for our role in bringing the process toward a more realistic understanding of human psychology. The main problem for Benforado, however, is that these fruits aren't distributed evenly. And he's right about that. Still, he fails to appreciate the trial consulting community's goals and actions in addressing that imbalance and in sharing the wealth when it comes to expertise. As much as we might naturally bristle at the criticism, I think that litigation consultants and their fans would be better off taking some of Benforado's point to heart, and using this argument as an impetus to promoting even broader access.